1.—“No treaty of peace shall be regarded as valid, if made with the
secret reservation of material for a future war.”
For then it would be a mere truce, a mere suspension of hostilities,
not peace. A peace signifies the end of all hostilities and to attach
to it the epithet “eternal” is not only a verbal pleonasm, but
matter of suspicion. The causes of a future war existing, although
perhaps not yet known to the high contracting parties themselves, are
entirely annihilated by the conclusion of peace, however acutely
they may be ferreted out of documents in the public archives. There
may be a mental reservation of old claims to be thought out at a
future time, which are, none of them, mentioned at this stage,
because both parties are too much exhausted to continue the war,
while the evil intention remains of using the first favourable
opportunity for further hostilities. Diplomacy of this kind only
Jesuitical casuistry can justify: it is beneath the dignity of a
ruler, just as acquiescence in such processes of reasoning is beneath
the dignity of his minister, if one judges the facts as they really
are.[109]
[109] On the honourable interpretation of treaties, see Vattel
(_op. cit._, II. Ch. XVII., esp. §§ 263-296, 291). See also what
he says of the validity of treaties and the necessity for holding
them sacred (II. Ch. XII. §§ 157, 158: II. Ch. XV). [Tr.]
If, however, according to present enlightened ideas of political
wisdom, the true glory of a state lies in the uninterrupted
development of its power by every possible means, this judgment must
certainly strike one as scholastic and pedantic.
2.—“No state having an independent existence—whether it be great or
small—shall be acquired by another through inheritance, exchange,
purchase or donation.”[110]
[110] “Even the smoothest way,” says Hume, (_Of the Original
Contract_) “by which a nation may receive a foreign master, by
marriage or a will, is not extremely honourable for the people;
but supposes them to be disposed of, like a dowry or a legacy,
according to the pleasure or interest of their rulers.” [Tr.]
For a state is not a property (_patrimonium_), as may be the ground
on which its people are settled. It is a society of human beings
over whom no one but itself has the right to rule and to dispose.
Like the trunk of a tree, it has its own roots, and to graft it on
to another state is to do away with its existence as a moral person,
and to make of it a thing. Hence it is in contradiction to the idea
of the original contract without which no right over a people is
thinkable.[111] Everyone knows to what danger the bias in favour of
these modes of acquisition has brought Europe (in other parts of
the world it has never been known). The custom of marriage between
states, as if they were individuals, has survived even up to the most
recent times,[112] and is regarded partly as a new kind of industry
by which ascendency may be acquired through family alliances, without
any expenditure of strength; partly as a device for territorial
expansion. Moreover, the hiring out of the troops of one state to
another to fight against an enemy not at war with their native
country is to be reckoned in this connection; for the subjects are in
this way used and abused at will as personal property.
[111] An hereditary kingdom is not a state which can be inherited
by another state, but one whose sovereign power can be inherited
by another physical person. The state then acquires a ruler, not
the ruler as such (that is, as one already possessing another
realm) the state.
[112] This has been one of the causes of the extraordinary
admixture of races in the modern Austrian empire. Cf. the lines
of Matthias Corvinus of Hungary (quoted in Sir W. Stirling
Maxwell’s _Cloister Life of Charles the Fifth_, Ch. I., _note_):—
“Bella gerant alii, tu, felix Austria, nube!
Nam quae Mars aliis, dat tibi regna Venus.” [Tr.]
3.—“Standing armies (_miles perpetuus_) shall be abolished in course
of time.”
For they are always threatening other states with war by appearing
to be in constant readiness to fight. They incite the various states
to outrival one another in the number of their soldiers, and to this
number no limit can be set. Now, since owing to the sums devoted
to this purpose, peace at last becomes even more oppressive than a
short war, these standing armies are themselves the cause of wars of
aggression, undertaken in order to get rid of this burden. To which
we must add that the practice of hiring men to kill or to be killed
seems to imply a use of them as mere machines and instruments in the
hand of another (namely, the state) which cannot easily be reconciled
with the right of humanity in our own person.[113] The matter stands
quite differently in the case of voluntary periodical military
exercise on the part of citizens of the state, who thereby seek to
secure themselves and their country against attack from without.
[113] A Bulgarian Prince thus answered the Greek Emperor who
magnanimously offered to settle a quarrel with him, not by
shedding the blood of his subjects, but by a duel:—“A smith who
has tongs will not take the red-hot iron from the fire with his
hands.”
(This note is a-wanting in the second Edition of 1796. It is
repeated in Art. II., see p. 130.) [Tr.]
The accumulation of treasure in a state would in the same way be
regarded by other states as a menace of war, and might compel them to
anticipate this by striking the first blow. For of the three forces,
the power of arms, the power of alliance and the power of money, the
last might well become the most reliable instrument of war, did not
the difficulty of ascertaining the amount stand in the way.
4.—“No national debts shall be contracted in connection with the
external affairs of the state.”
This source of help is above suspicion, where assistance is sought
outside or within the state, on behalf of the economic administration
of the country (for instance, the improvement of the roads, the
settlement and support of new colonies, the establishment of
granaries to provide against seasons of scarcity, and so on). But,
as a common weapon used by the Powers against one another, a credit
system under which debts go on indefinitely increasing and are yet
always assured against immediate claims (because all the creditors
do not put in their claim at once) is a dangerous money power. This
ingenious invention of a commercial people in the present century
is, in other words, a treasure for the carrying on of war which may
exceed the treasures of all the other states taken together, and
can only be exhausted by a threatening deficiency in the taxes—an
event, however, which will long be kept off by the very briskness
of commerce resulting from the reaction of this system on industry
and trade. The ease, then, with which war may be waged, coupled with
the inclination of rulers towards it—an inclination which seems
to be implanted in human nature—is a great obstacle in the way of
perpetual peace. The prohibition of this system must be laid down as
a preliminary article of perpetual peace, all the more necessarily
because the final inevitable bankruptcy of the state in question
must involve in the loss many who are innocent; and this would be
a public injury to these states. Therefore other nations are at
least justified in uniting themselves against such an one and its
pretensions.
5.—“No state shall violently interfere with the constitution and
administration of another.”
For what can justify it in so doing? The scandal which is here
presented to the subjects of another state? The erring state can
much more serve as a warning by exemplifying the great evils which a
nation draws down on itself through its own lawlessness. Moreover,
the bad example which one free person gives another, (as _scandalum
acceptum_) does no injury to the latter. In this connection, it is
true, we cannot count the case of a state which has become split up
through internal corruption into two parts, each of them representing
by itself an individual state which lays claim to the whole. Here
the yielding of assistance to one faction could not be reckoned as
interference on the part of a foreign state with the constitution of
another, for here anarchy prevails. So long, however, as the inner
strife has not yet reached this stage the interference of other
powers would be a violation of the rights of an independent nation
which is only struggling with internal disease.[114] It would
therefore itself cause a scandal, and make the autonomy of all states
insecure.
[114] See Vattel: _Law of Nations_, II. Ch. IV. § 55. No
foreign power, he says, has a right to judge the conduct and
administration of any sovereign or oblige him to alter it. “If
he loads his subjects with taxes, or if he treats them with
severity, the nation alone is concerned; and no other is called
upon to offer redress for his behaviour, or oblige him to follow
more wise and equitable maxims.... But (_loc. cit._ § 56) when
the bands of the political society are broken, or at least
suspended, between the sovereign and his people, the contending
parties may then be considered at two distinct powers; and, since
they are both equally independent of all foreign authority,
nobody has a right to judge them. Either may be in the right; and
each of those who grant their assistance may imagine that he is
giving his support to the better cause.” [Tr.]
6.—“No state at war with another shall countenance such modes of
hostility as would make mutual confidence impossible in a subsequent
state of peace: such are the employment of assassins (_percussores_)
or of poisoners (_venefici_), breaches of capitulation, the
instigating and making use of treachery (_perduellio_) in the hostile
state.”
These are dishonourable stratagems. For some kind of confidence in
the disposition of the enemy must exist even in the midst of war,
as otherwise peace could not be concluded, and the hostilities
would pass into a war of extermination (_bellum internecinum_).
War, however, is only our wretched expedient of asserting a right
by force, an expedient adopted in the state of nature, where no
court of justice exists which could settle the matter in dispute. In
circumstances like these, neither of the two parties can be called
an unjust enemy, because this form of speech presupposes a legal
decision: the issue of the conflict—just as in the case of the
so-called judgments of God—decides on which side right is. Between
states, however, no punitive war (_bellum punitivum_) is thinkable,
because between them a relation of superior and inferior does not
exist. Whence it follows that a war of extermination, where the
process of annihilation would strike both parties at once and all
right as well, would bring about perpetual peace only in the great
graveyard of the human race. Such a war then, and therefore also the
use of all means which lead to it, must be absolutely forbidden.
That the methods just mentioned do inevitably lead to this result
is obvious from the fact that these infernal arts, already vile in
themselves, on coming into use, are not long confined to the sphere
of war. Take, for example, the use of spies (_uti exploratoribus_).
Here only the dishonesty of others is made use of; but vices such
as these, when once encouraged, cannot in the nature of things be
stamped out and would be carried over into the state of peace, where
their presence would be utterly destructive to the purpose of that
state.
Although the laws stated are, objectively regarded, (_i.e._ in so far
as they affect the action of rulers) purely prohibitive laws (_leges
prohibitivæ_), some of them (_leges strictæ_) are strictly valid
without regard to circumstances and urgently require to be enforced.
Such are Nos. 1, 5, 6. Others, again, (like Nos. 2, 3, 4) although
not indeed exceptions to the maxims of law, yet in respect of the
practical application of these maxims allow subjectively of a certain
latitude to suit particular circumstances. The enforcement of these
_leges latæ_ may be legitimately put off, so long as we do not lose
sight of the ends at which they aim. This purpose of reform does not
permit of the deferment of an act of restitution (as, for example,
the restoration to certain states of freedom of which they have been
deprived in the manner described in article 2) to an infinitely
distant date—as Augustus used to say, to the “Greek Kalends”, a day
that will never come. This would be to sanction non-restitution.
Delay is permitted only with the intention that restitution should
not be made too precipitately and so defeat the purpose we have
in view. For the prohibition refers here only to the _mode of
acquisition_ which is to be no longer valid, and not to the _fact of
possession_ which, although indeed it has not the necessary title of
right, yet at the time of so-called acquisition was held legal by all
states, in accordance with the public opinion of the time.[115]
[115] It has been hitherto doubted, not without reason, whether
there can be laws of permission (_leges permissivæ_) of pure
reason as well as commands (_leges præceptivæ_) and prohibitions
(_leges prohibitivæ_). For law in general has a basis of
objective practical necessity: permission, on the other hand, is
based upon the contingency of certain actions in practice. It
follows that a law of permission would enforce what cannot be
enforced; and this would involve a contradiction, if the object
of the law should be the same in both cases. Here, however,
in the present case of a law of permission, the presupposed
prohibition is aimed merely at the future manner of acquisition
of a right—for example, acquisition through inheritance: the
exemption from this prohibition (_i.e._ the permission) refers
to the present state of possession. In the transition from a
state of nature to the civil state, this holding of property can
continue as a _bona fide_, if usurpatory, ownership, under the
new social conditions, in accordance with a permission of the Law
of Nature. Ownership of this kind, as soon as its true nature
becomes known, is seen to be mere nominal possession (_possessio
putativa_) sanctioned by opinion and customs in a natural state
of society. After the transition stage is passed, such modes of
acquisition are likewise forbidden in the subsequently evolved
civil state: and this power to remain in possession would not
be admitted if the supposed acquisition had taken place in the
civilized community. It would be bound to come to an end as an
injury to the right of others, the moment its illegality became
patent.
I have wished here only by the way to draw the attention of
teachers of the Law of Nature to the idea of a _lex permissiva_
which presents itself spontaneously in any system of rational
classification. I do so chiefly because use is often made of
this concept in civil law with reference to statutes; with this
difference, that the law of prohibition stands alone by itself,
while permission is not, as it ought to be, introduced into that
law as a limiting clause, but is thrown among the exceptions.
Thus “this or that is forbidden”,—say, Nos. 1, 2, 3, and so on
in an infinite progression,—while permissions are only added to
the law incidentally: they are not reached by the application of
some principle, but only by groping about among cases which have
actually occurred. Were this not so, qualifications would have
had to be brought into the formula of laws of prohibition which
would have immediately transformed them into laws of permission.
Count von Windischgrätz, a man whose wisdom was equal to his
discrimination, urged this very point in the form of a question
propounded by him for a prize essay. One must therefore regret
that this ingenious problem has been so soon neglected and left
unsolved. For the possibility of a formula similar to those of
mathematics is the sole real test of a legislation that would be
consistent. Without this, the so-called _jus certum_ will remain
forever a mere pious wish: we can have only general laws valid
on the whole; no general laws possessing the universal validity
which the concept law seems to demand.
_SECOND SECTION_